Luckenbach SS Co. v. United States, 239
| Decision Date | 26 July 1946 |
| Docket Number | 20148.,No. 239,239 |
| Citation | 157 F.2d 250 |
| Parties | LUCKENBACH S. S. CO., Inc., v. UNITED STATES. THE S. S. MATHEW LUCKENBACH et al. |
| Court | U.S. Court of Appeals — Second Circuit |
John F. X. McGohey, U. S. Atty., of New York City (Alfred T. Cluff, Sp. Asst. to Atty. Gen., of counsel), for appellant.
Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark, A. Howard Neely, and Charles E. Wythe, all of New York City, of counsel), for appellee.
Before L. HAND, SWAN and CHASE, Circuit Judges.
This litigation concerns a collision at night on October 21, 1942 between two blacked out vessels in an east bound convoy. The convoy stations of the colliding steamships were in adjacent columns, the Mathew Luckenbach being the fourth and last vessel in the third column (position No. 34) and the Zacapa being the third vessel in the fourth column (position No. 43). Ahead of the Luckenbach in position No. 33 was a tanker referred to in the testimony as the "whaler." Ahead of the Zacapa in position No. 42 was another tanker and following the Zacapa was the Esso Bayway in position No. 44. The distance between columns was 3,000 feet and between ships in the same column 1,200 feet. The convoy was on a course of 45° true and was proceeding at a speed of nine knots. The colliding vessels came together at almost a right angle, the bow of the Zacapa piercing the starboard quarter of the Luckenbach about thirty feet forward of her stern. It is obvious that one or both of the vessels must have been out of proper position in the convoy. The trial judge found that the collision occurred in the line of the fourth column; he held the Luckenbach at fault for being out of station and off course, and for failure to show lights and take any avoiding action when she discovered the Zacapa. The latter he held at fault for failing to maintain a competent lookout and failing to show lights or sound a signal to indicate a change of course when she attempted to avoid the Luckenbach. Upon this appeal each party claims that the other's vessel should have been held solely at fault.
The appeal presents only questions of fact. All the evidence was by deposition. Hence this court is as well able as the trial judge to appraise the credibility of the witnesses and draw inferences from their testimony. The judge discredited the Luckenbach's testimony that she was behind the whaler (No. 33) when the collision happened, and found that she had strayed into the line of the fourth column and her course was almost at right angles to the course of the convoy. We see no reason to doubt the correctness of this finding. During the watch which began at 4 a. m. the Luckenbach concededly fell behind. The watch officer discovered that her engines were turning only 47 revolutions instead of the 57 needed for the eight knot speed which the convoy maintained up to 5 a. m. when it was increased to nine knots. At about 4:50 a. m. he called for 62 revolutions and five minutes later for full speed of 11½ to 12 knots. She ran at full speed for 30 minutes, which means that she covered about 6 miles while the convoy, at 9 knots, covered only 4½ miles. At 5:25 she reduced to half speed as she was then only 2½ to 3 cables behind a vessel which the watch officer identified as the whaler No. 33. She kept on at half speed for 8 minutes, then went to slow speed for 2 minutes, and at 5:35 stopped her engines because she was getting too close to the vessel ahead. A few seconds later a ship was seen on her starboard beam which proved to be the Zacapa. The collision occurred at 5:36 Luckenbach time. The inference that in trying to regain her station in the dark, after having fallen more than a mile behind, she passed the Esso Bayway and the Zacapa, angled over toward the fourth column and got behind the No. 42, mistakenly identifying her as the No. 33, is a far more probable explanation of the collision than the supposition she offers, namely, that the Zacapa got 90 degrees off the prescribed course and blundered into the third column. And this explanation is not only...
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